Tuesday, December 17, 2013


A couple of notes:

(1) For those interested, I have a long piece at Minding the Campus examining the overall decline of due process involving campus allegations of sexual assault—and asking why colleges are so reluctant to treat rape what it is: a crime. In short, a combination of pressure from the Office for Civil Rights, a general indifference to due process by some administrators, and an aggressive attempt by campus ideologues to introduce a system that makes rape convictions easier explain the development.

(Update: I also have a shorter MTC piece on poor coverage of procedure in the media, including some Group of 88-like tweets from a Journalism professor.)

(2) An interesting item a few weeks ago from the Supreme Court. The Court declined to hear the appeal of a case called Martin v. Blessing, where the issues included what Justice Alito termed the “highly unusual” practice of a New York district court judge, Harold Baer, of setting racial and gender quotas for attorneys in class action cases. (Baer, it seems, would fit right in with the Group of 88.) The Court chose not to hear the appeal, but Alito penned an interesting opinion strongly condemning Baer’s practice, what Scotusblog’s Tom Goldstein described as “a warning shot that some anomalous practices should be stopped without the Court ever having to get involved.

Alito’s opinion was interesting for one other reason. The justice commented that, to the best of his knowledge, Baer was the only federal judge who demanded that law firms in class action cases before his court employ racial and gender quotas in “The uniqueness of this practice,” Alito wrote, “weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.”

We’ll likely never know why the Supreme Court declined to hear the appeal of the 4th Circuit’s ruling to let Durham off the hook in the lacrosse civil suit. But it’s worth noting that Alito’s observation would seem to apply to the facts of the lacrosse case as well—it’s extremely rare, almost unprecedented, in recent years to have a prosecutor usurp control of a police investigation (with the cooperation of police higher-ups) and then manufacture evidence to obtain indictments, which were critical for his short-term political goals. Perhaps the Court simply concluded that since we weren’t likely to see a Mike Nifong again anytime soon, the “uniqueness” of the lacrosse case’s facts weighed against review.

That said, the denial left in place the deeply flawed 4th Circuit ruling, holding that at least in the circuit, no federal civil rights violation occurs when a prosecutor conspires with police to frame innocent people, provided that the police are candid in discussions with the prosecutor that no real inculpatory evidence exists—and the prosecutor obtains a grand jury indictment, even if the police mislead the grand jury about the nature of the evidence.

[Update, Fri., 9.47am: Those wishing a chuckle can examine the ravings of pro-Nifong crank Sidney Harr (whose Justice for Nifong committee roster includes convicted murderer Crystal Mangum). Harr and the Duke attorneys can battle it out between them.]

Hat tip: J.R.

Friday, December 13, 2013


The post below reflects on the almost utter lack of media accountability regarding those who got the lacrosse case wrong. Selena Roberts is Exhibit A for the pattern--a figure who rushed to judgment and then has offered wildly misleading accounts of what she had written, apparently believing that readers can't read for themselves what she wrote in 2006.

A lack of accountability has been a major theme in the academic world, as well. The Group of 88 ad violated Duke procedures; the public statements of several Group members (plus Peter Wood) seemed to violate Duke's Faculty Handbook and Student Bulletin. Yet to the best of my knowledge, there never was any discipline against a Group member.

Perhaps one reason for this lack of accountability is that discipline would have needed to come from a deeply compromised figure himself, Richard Brodhead. The lacrosse case probably finished any chance of another university hiring Brodhead as president, but otherwise the man who reacted to the first two arrests by asserting of his students that whatever they did was bad enough has seen his career flourish.

The latest: The Carnegie Corporation recently conferred upon Brodhead an Academic Leadership Award (there were four recipients), designating him among the "exceptional leaders in higher education." Imagine if one fact in the lacrosse case had been reversed: that to prevail in the 2006 primary, Mike Nifong had needed white votes rather than black votes, and therefore had manufactured evidence against black Duke students, and then-President Brodhead, as he did in the lacrosse case, had joined the rush to judgment against his innocent students.

Does anyone believe that such a record would not have permanently (and appropriately) disqualified Brodhead from future prestigious academic leadership awards?

In American Thinker, Bernie Reeves has an excellent column on this issue, and takes to task a forget-the-past editorial hailing Brodhead from the N&O.

Friday, December 06, 2013

Selena Roberts: The Serial Misleader

The case involving Florida State quarterback Jameis Winston is probably the highest-profile sexual assault claim involving an elite college athlete since the lacrosse case. But the facts of the two cases have almost nothing in common.
  • The claim in the Winston case was one of acquaintance rape, his DNA was found on the accuser, and as soon as the DNA findings became public, his attorney admitted that Winston had sexual contact with the accuser. The lacrosse players’ attorneys, on the other hand, consistently denied any sexual contact—and no DNA links between them and false accuser Crystal Mangum ever were established.
  • In Tallahassee, the local police seemed to bend over backwards to accommodate Winston; in Durham, the local police (ranging from the DPD leaders, who turned the case over to Mike Nifong, ranging down to ex-Sgt. Mark Gottlieb) seemed to bend over backwards to frame the lacrosse players.
  • In Tallahassee, the college administration stood firmly behind Winston; in Durham, the reverse was true.
  • In the Winston case, the media coverage was generally accurate and avoided a rush to judgment; in the lacrosse case, the reverse held true--especially on the pages of the New York Times.
  • And, of course, there was no equivalent to the Group of 88 in Tallahassee.
Given these enormous differences, it would be a reach to draw much of a connection between the two cases. But Selena Roberts has never let anything like facts (or common sense) stand in her way. She embarrassed herself earlier this year in odd ruminations about Auburn. After disparaging the concept in her coverage of Duke, she suddenly purported to discover the importance of due process in Auburn—only to see several of the current and former players she had (allegedly) quoted claim that they didn’t tell her what she claimed they did, and only to see her main source, whom she had presented as almost certainly innocent, plead guilty to the crime.

So now, she’s back to doing what she does best—leveling a character assault against the lacrosse players, while whitewashing her own commentary from the period before the arrests. As part of a critique about the police response in the Winston case, Roberts reached back to Durham:

“In 2006, pitched against a political backdrop of elections, District Attorney Michael Nifong aggressively pursued rape charges against lacrosse players and falsified statements about evidence. The case against the players was dismissed and Nifong was disbarred. Nifong let himself be swept into a public tinder box of scenes from the party, including porn-style pictures taken on phones of an exotic dancer -- accuser Crystal Mangum -- and a disturbing email post depicting the skinning of strippers in an ‘American Psycho’ reference. This was in addition to irrefutable accounts of racial slurs and sodomy jokes at the party and past misdemeanors involving the team.

“As I noted in two opinion pieces for The New York Times, a no-crime, no-foul approach wasn't the only answer to the Duke scandal although it was the most popular one by the lacrosse team supporters. Folks can still inspect and debate a dehumanizing culture even though what happened at Duke didn't rise to a criminal case. I wrote in March 2007: ‘No one would want an innocent Duke player wronged or ruined by false charges -- and that may have occurred on Nifong's watch -- but the alleged crime and the culture are mutually exclusive. Some readers argue no one would have known about the lacrosse team's misogyny bash last year if not for the initial rape charges by the hired dancer. True, but that’s how we often discover what goes on behind the curtains: by a botched break-in, through a door left ajar.’”

It’s curious that Roberts writes that she penned “two opinion pieces for The New York Times.” Actually, she wrote three. Two of her columns, as she noted, focused on attacking the players’ character. Those columns came in April 2006—after, contrary to widespread expectations, it was revealed that there were no DNA matches between Mangum and the lacrosse players, strongly suggesting that her story, as described, could not have occurred—and in March 2007, after Nifong’s case had utterly collapsed.

But a character-only approach wasn’t Roberts’ initial take. I wonder, therefore, why Roberts didn’t ask “folks” to review the first column she wrote on the case, published in late March 2006. Indeed, I wonder why she didn’t even mention that column. That’s the item in which she—based solely on what Nifong and Mangum were saying—unequivocally asserted that “something happened March 13” that “threatens to belie [the players’] social standing as human beings.” She compared the players’ behavior to that “of drug dealers and gang members engaged in an anti-snitch campaign.” She praised the “heartening” protests of the potbangers—people, it’s worth remembering, who carried signs reading “Castrate” and “Measure for Measure.” She falsely stated that none of the players “have come forward to reveal an eyewitness account.” She falsely contended that a “court document” described the accuser as “the victim of a hate crime.” She noted that the accuser was “reportedly treated at a hospital for vaginal and anal injuries consistent with sexual assault and rape.”

This sort of writing didn’t exactly feature a recognition that “the alleged crime and the culture are mutually exclusive.” It did precisely the opposite, by analyzing the lacrosse players’ character (in what turned out to be a wildly misleading fashion) solely for the purpose of trying to explain why the players had not turned in their teammates who had committed the rape. Comparing college students to drug dealers or gang members doesn’t scream a respect for presumption of innocence. Does Roberts believe that no one who reads her work has access to Lexis-Nexis or Proquest? Why, then, would Roberts attempt to mislead about the thesis of her columns?

While Roberts has “folks” assuming the worst about the lacrosse players’ character (all of them, in Roberts’ world, appear to be judged solely on a portrayal of the party that some didn’t even attend and the overwhelming majority didn’t plan, with no discussion of whether the party was in any way typical of tasteless spring break activities by many college students, and a convenient use of the plural to describe events at the party), examine how Roberts describes the criminal case.

Most important, Roberts still can’t bring herself to label the lacrosse players as innocent. (“The case against the players was dismissed.”) So does she believe there was some evidence to substantiate the charges? If not, why the reluctance to identify the falsely accused players as AG Roy Cooper did, as actually innocent?

As for Nifong, he almost comes across as a good guy—“swept into a public tinder box” (he had no choice!) as he “aggressively pursued rape charges” (what’s wrong with that?). So what did Nifong do wrong? Roberts can only bring herself to devote four words: the disgraced DA “falsified statements about evidence.” Actually, he concealed evidence. And he ordered police to violate their own procedures to produce inculpatory evidence. And he violated myriad ethical procedures. And he lied, in court, to a judge. But including such offenses would have distracted from Roberts’ agenda.

After all, some lacrosse players (like hundreds of other Duke students, thanks to a then-secret agreement between Duke and Durham) had “misdemeanors.”